Officer in Shooting Puts LAPD on the Spot : Police: He admits using ‘excessive force’ in off-duty incident but says he was behaving in accordance with his department training. The city is a target of a $3.5-million lawsuit.

A Los Angeles police officer who shot and wounded two men during an off-duty incident last year has admitted that he used “unreasonable, unnecessary and excessive force,” but he also contends that he did so only because of his Police Department training.

In an unusual twist, Salvador Silva, a Van Nuys patrol officer, made the concession in an affidavit in federal court in defense of a lawsuit seeking $3.5 million against him and the city.

Most officers vigorously deny any wrongdoing at every phase of a shooting investigation, but Silva filed the affidavit this week, more than a month before the Los Angeles Police Department decides whether he should be fired for wounding the men outside a hamburger stand last December in Rowland Heights.

The affidavit sets the stage for a hearing Dec. 21 to determine whether the city should be held liable in the lawsuit for Silva’s actions.

Silva wounded Raymond Tapia and Jason Corona during a fight last Dec. 6 outside Tommy’s World Famous Hamburgers at Colima and Fullerton roads. Since then, he has been relieved of duty without pay and is scheduled to appear Jan. 13 before an LAPD administrative hearing.

When Tapia later filed a federal lawsuit against Silva and the city, then-Police Chief Daryl F. Gates asked the city attorney not to represent Silva because the shooting occurred while the 24-year-old officer was off duty. The city attorney’s office agreed not to defend the officer.

But in a legal gambit aimed at winning a settlement from the city larger than he could win from Silva, Tapia’s attorney, Stephen Yagman, negotiated with the officer and on Monday Silva filed the affidavit acknowledging he used excessive force.

The two-year LAPD officer, however, also stated in his affidavit that he “at all times . . . acted pursuant to LAPD policy, practice, custom and procedure.” He added that he “was educated, taught and instructed to use this level of force by (the) LAPD.”

Yagman plans to use the affidavit in support of his argument that the federal court hold the city responsible for the shootings.

“This police officer is a good police officer who made a bad mistake,” Yagman said Tuesday. “He is just telling the truth here, and he believes that in the new LAPD, with Chief Willie Williams, if he tells the truth and explains that he did what he was trained to do, then nothing bad will happen to him.”

Silva’s attorney in the lawsuit, Burton Jacobson, declined to comment on the case.

But Sgt. Paul McMillin, who will be defending Silva at the LAPD Board of Rights next month, agreed that Silva’s training at the Police Academy taught him to go for his weapon.

“Policemen don’t carry batons off duty,” McMillin said, explaining that Silva had no other weapons at his disposal during the fight. “Nor do you carry mace off duty.” Silva reached for his gun, McMillin said, because he “had no other alternative.”

But Don Vincent, an assistant city attorney, said it is ludicrous to expect the city of Los Angeles to be held responsible for this incident.

“We’re going to fight this,” Vincent said. “I think it’s flatly, blatantly wrong.

“The guy was off duty, out of the city, and he didn’t even have his city gun. He purely was not acting in the course and scope of his employment.”

According to some witnesses, the confrontation began when Tapia and Corona attempted to break up an argument between Silva and two women at the restaurant. County sheriff’s investigators said at the time that Silva fired only after he was choked and feared for his life.

Sandi Gibbons, a spokeswoman for the district attorney’s office, said prosecutors are still reviewing the matter to determine whether criminal charges should be filed.

Meanwhile, Silva has been accused in administrative charges of becoming involved in an “out of policy shooting,” as well as “unnecessarily” becoming involved in a dispute resulting in the response of an outside law enforcement agency and failing to take appropriate action after becoming involved in a shooting.